The Phillie Phanatic, like his cousin Gritty of the Flyers, is a beloved figure in the Philadelphia sports community. The Phanatic interacts with fans at games by creating controlled chaos in the stands, entertaining fans during down-times. However, his future in Philadelphia is uncertain, as the Phanatic may become a free agent due to the Copyright Act.
In 1978, the Phillies contracted with a firm, Harrison/Erickson, to create the Phanatic mascot. Under the contract, Harrison/Erickson was the creator of the mascot and obtained a copyright registration. In 1984, the parties renegotiated their deal. Harrison/Erickson sold the rights to the Phanatic to the Phillies “forever.”
Copyright Act provides “Claw Back” Rights
However, the Copyright Act includes a provision for creators to “claw back” transferred rights after 35 years. Congress recognized that creators often sell their rights for small sums of money compared to the actual value of their works. Many creators are artists living paycheck to paycheck, putting them at a disadvantage in negotiations for their works. As a result, Congress provided a route for those creators to regain their rights and obtain a true value for their works. Under the Copyright Act, “forever” can mean 35 years.
Harrison/Erickson informed the Phillies of their claw back intentions in 2018, and the parties have been in litigation ever since. If the parties cannot renegotiate the assignment soon, the Phanatic will become a free agent and could sign with another team.
Altered Phanatic Makes Debut
As a result of the dispute, the Phillies debuted a new version of the Phanatic during spring training in Clearwater. The new Phanatic now has wings, stars behind its eyes, a different-shaped snout, and different socks and shoes, indicating that the Phillies recognize their weak position. However, the new Phanatic likely infringes the original Phanatic copyright as a derivative work. The redesign is unlikely to help prevent the Phanatic from becoming a free agent, and may hurt the Phillies’ standing in court.
Much like the Phanatic, the Phillies are creating their own chaos. However, Philadelphia fans don’t want to see their beloved Phanatic become a free agent and sign for a new team. Hopefully the parties come to their senses and renegotiate the agreement before opening pitch in Philadelphia on April 2.
